OCCUPATIONS - reinstatement application - whether Applicant has discharged onus of proof
Source
Original judgment source is linked above.
Catchwords
OCCUPATIONS - reinstatement application - whether Applicant has discharged onus of proof
Judgment (4 paragraphs)
[1]
The Applicant has the onus of proof in these proceedings. The onus is a heavy one. The Applicant must demonstrate to the Tribunal that, having engaged in the conduct in issue which was serious, she can now be trusted to return to practise in a way that presents no risk to the safety of the public and the public's confidence in the profession.
The Tribunal is to exercise the power to reinstate with great caution, only on solid and substantial grounds, and is to approach its task with a "healthy scepticism". The paramount consideration is the protection of public safety.
The Applicant must show that she holds to the required ethical standards. Clear proof is also required that she has gained insight and that she will not behave in future in a way that takes advantage of vulnerable people or may bring the profession into disrepute.
The question before the Tribunal is whether cancellation of the Applicant's registration remains appropriate at the time of review, as opposed to the time of the 2024 Decision or earlier.
We understood the Applicant to say that she was a fit and proper person to practice and be registered as a nurse and had "learnt my lesson". She expressed "regret" and said she had "reflected on the situation to ensure that it does not recur". The Applicant's evidence firstly included evidence of training in ethics she undertook in 2020. She had also undertaken subsequent training in nursing. She said the training included a certificate in health administration and a certificate as a dental assistant. She provided no documentary proof, such as copies of certificates. There was no evidence that the training included any course in ethics after the dates of her offending in 2021.
The Respondent, on the other hand, submitted that the Applicant had sought to "minimise the seriousness of her conduct" and further that she was "not truthful in her evidence before the Tribunal". The Respondent said that it is a "fundamental requirement of nursing that one is scrupulously honest in their dealings with their work colleagues and patients. If the Applicant could not be trusted to be truthful in her evidence before the Tribunal, then the Tribunal could not trust her to be truthful in her dealings with others".
The victims of the Applicant's conduct were vulnerable persons. One suffered from dementia. The other was affected by drugs or alcohol. In each case, she took advantage of a vulnerable person.
We do not see in her application for administrative review or what the Applicant told the Tribunal evidence of any satisfactory understanding or insight concerning her conduct. Even if the Applicant said that she had learnt her lesson, we did not see any meaningful remorse on the part of the Applicant. The Applicant's reflections about that conduct were limited. She did not say anything about the impact of her conduct on the victims of her offending nor did she show any understanding of their vulnerability.
At the hearing of these proceedings, the Applicant was also unable to tell the Tribunal what she had learnt from the Ethics Course. It is also of concern that her offending in 2021 occurred after the time she undertook the Ethics Course. This leaves a question as to what impact the Ethics Course had on the Applicant.
Concerns also remain as to the truthfulness of the Applicant as set out at [107]-[108] of the 2024 Decision. We could not see in what she told the Tribunal in these proceedings any understanding or insight concerning the importance of truthfulness.
The Tribunal ordered on 2 June 2025 that the parties provide to the Tribunal all their materials on or before 23 July 2025. The Applicant did not file any materials in accordance with these orders. She has not provided evidence before the Tribunal in the nature of her own written reflections about what had happened and its impact on her victims, other than the limited information set out in her application for administrative review commencing these proceedings. She provided no references for her character from others working as nurses or people outside the profession capable of attesting to her character. The absence of evidence of this kind does not assist the Applicant.
The Applicant has not shown on the balance of probabilities that she satisfies the required ethical standards to work as a nurse. We are not satisfied that she has shown sufficient insight into her conduct, clear remorse or an understanding of the ethical framework within which a nurse must work. Further, she has not supplied the Tribunal with supporting evidence that could assist her case as set out at [42] above. Her application for reinstatement should be refused.
The Respondent sought an order that the Applicant pay their costs. Costs should generally follow the event. We find no disentitling conduct on the part of the Respondent that should alter the normal position as to costs. We will order that the Applicant pay the costs of the Respondent as agreed or assessed.
[2]
(1) the application is dismissed;
(2) the Applicant is to pay the costs of the Health Care Complaints Commission in relation to these proceedings, as agreed or assessed.
[3]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
[4]
24 September 2025 - Coversheet - "Biance" changed to "Bianca".
Parties
Applicant/Plaintiff:
Richards
Respondent/Defendant:
Health Care Complaints Commission [2025] NSWCATOD 126;
Cases Cited (10)
The Tribunal considered the complaints and found that they had been proved (Health Care Complaints Commission v Richards[2024] NSWCATOD 45) ("2024 Decision").
The Tribunal went on to find that the Applicant's offences rendered her as being unfit in the public interest to practise as a nurse (paragraph [103]). The Tribunal said, at [106]:
The review is not a review of the original decision to cancel the practitioner's registration but is a review to determine the appropriateness of the cancellation order as at the date of the hearing of the application. Brereton JA, with whom Bell P (as His Honour then was) agreed, stated in Qasim v Medical Council of New South Wales[2021] NSWCA 173, at [17], that:
The approach to be taken in considering an application for a reinstatement order under the National Law has been set out in numerous decisions of the Tribunal including recently in Mayr v Health Care Complaints Commission[2023] NSWCATOD 148, at [9]-[12]. The Tribunal observed in Mayr, in Vito Zepinic v Health Care Complaints Commission[2020] NSWSC 13 that Adams J said that the general principles to be followed had been correctly identified by the Tribunal in Zepinic v Health Care Complaints Commission (No 2)[2018] NSWCATOD 166, at [78]. The Tribunal said:
"The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated the principles in the following terms:
We accept as correct the Commission's submissions as to the relevant principles to be applied. These include:
(1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a));
(2) The paramount consideration is the protection of the health and safety of the public: see s 3A;
(3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24];
(4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13].
(5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW ; Coe v Health Care Complaints Commission at .
In Mooney v Medical Council of NSW[2024] NSWCATOD 24, the Tribunal explained, at [18]:
"Several formulations have been put forward as ways of predicting how a person will behave in future. Have they gained insight? Have they proved that they have overcome a defect in character? Are they now a 'fit and proper person' to be registered? Essentially the question is whether Mr Mooney has proved that he can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales[2015] NSWCATOD 49 at [24]".
In Donnelly v Health Care Complaints Commission[2014] NSWCATOD 155, at [13] the Tribunal said:
"We must approach the matter of reinstatement with a healthy scepticism - see Ex parte Tziniolis, Re the Medical Practitioner Act (1966) 84 WN (Pt 2) (NSW) 275 at 286 (Walsh J). As was noted by the High Court a long time ago in Re Lenehan[1948] HCA 45 at [27] (Latham CJ, Dixon and Williams JJ) when a lawyer applies for reinstatement to the relevant roll of practitioners, they are in a more disadvantageous position than an original applicant because they must displace the decision as to probable permanent unfitness which was the basis of their removal. While they may be restored to the roll after they have been struck off, the power to reinstate should be exercised with the greatest caution and only upon solid and substantial grounds. This approach has been adopted in New South Wales and is appropriate to health practitioners seeking to be reregistered as practitioners - see Dawson v The Law Society of New South Wales[1989] NSWCA 58 at [12] (Mahoney JA).. ..."
The Supreme Court in Jan v Health Care Complaints Commission[2021] NSWSC 350 affirmed that the power to reinstate should "be exercised with the greatest caution and only upon solid and substantial grounds" (at [67]).
The standard of proof is the civil standard of proof, that is, on the balance of probabilities to the level of satisfaction described by the High Court in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336. Given that the National Law is directed at the protection of the public, the Tribunal must be satisfied to a robust level (Mnyandu v Health Care Complaints Commission[2015] NSWCATOD 43 at [35] and the cases referred to there).
(6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made": Amieson at [24].
(7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34];
In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 the Tribunal stated:
In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that:
[A]n applicant for reinstatement ... is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness.
In that case, the Medical Tribunal also stated at [42]:
[T]he ultimate issue ... is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession".